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27 – 31 October 2011, 2–4, 7–11, 14 November 2011, 16 & 20
CRIMINAL LAW – Sentence – Obtain financial advantage by deception (s 82 Crimes Act1958
(Vic)) – Negligently dealing with proceeds of crime (s 194(4) Crimes Act 1958
Marc Edward Di Cioccio, you have been found guilty by a jury of two charges of
obtaining financial advantage by deception (counts 1 and 2)1, pleaded guilty to a
third charge of obtaining financial advantage by deception (count 3)2, and you have
pleaded guilty to one charge of negligently dealing with proceeds of crime (count
Circumstances of the offences
The three charges of obtaining financial advantage by deception, counts 1, 2 and 3,
In 2005 you began working in various businesses mostly owned by your older
brother, Andre Vincent Di Cioccio. You were then about 25 years of age; your
brother 2 years older. One of your brother’s businesses was a computer retailer, Mac
Spot Pty Ltd which sold Apple computers, iPods and accessories at 327 Glenhuntly
Road, Elsternwick. Another business was the legal practice, ANDMA Legal Pty Ltd,
which operated at 19 McKillop Street, Melbourne.
In addition to operating its retail shop at Elsternwick, the Mac Spot business also had
a small service centre located in the McKillop Street premises in the city. You
assisted in the Mac Spot business, both at Elsternwick and in the city. Your role
included booking in and administering the documentation for service jobs on
computer equipment. In doing so you had access to, operated and became familiar
with Mac Spot’s computers, both at Elsternwick and in McKillop Street, which
generated quotations and invoices for service jobs and sales.
In about July 2007 you engaged in the conduct the subject of counts 1 and 2. You
created two Mac Spot invoices purporting to record the sale of computer equipment
valued at $294,318 to two companies associated with your brother’s businesses, one
Counts 1 and 2 on indictment C 1007368 (the trial indictment).
Count 1 on indictment C 1007368.2 (the plea indictment).
of which you jointly owned with him via a holding company. The lender in each
case was Westpac Banking Corporation. In March of the following year you
engaged in the conduct the subject of count 3. You created a third Mac Spot invoice
purporting to record the lease of computer equipment, valued at $65,000 from Mac
Spot to ANDMA Holdings Pty Ltd, the holding company which you jointly owned
with your brother. The lender in that case was Circuit Finance Pty Ltd.
In each case the invoice was a sham as there was no sale or lease, actual or intended,
of the computer equipment to any of the companies.
The invoices were submitted to finance companies in support of applications for
equipment finance loans. In each case, the invoices stated the bank account details
into which the loan proceeds were to be paid if finance was granted. In each case,
the account was a Mac Spot bank account of which you were a signatory and for
which you were authorised to conduct internet banking. Three separate loans were
advanced – each being the subject of a separate count – in the sums of $85,318,
Although the negotiation of the loans, and submission of the applications, were
undertaken by your brother and another person, your role was to create or cause the
creation of those false invoices. You did so knowing that the invoices were to be
used to deceive the finance companies into granting loans to which the borrowing
companies were not lawfully entitled.
By this means, a total of $359,318 was paid into Mac Spot’s bank accounts. Those
monies were disbursed over time for a mixture of purposes associated with your
brother’s business enterprises, his personal interests and your personal interests. It
would appear that the sum paid for your direct personal interests was relatively
small – less than $2000 – although more substantial amounts were paid to or for the
benefit of companies in which, according to the share register, you ultimately held a
The charge of negligently dealing with proceeds of crime, the subject of count 4,
arose in somewhat different circumstances. In November 2008, your brother ‘s wife,
Meganita Marannu, received $625,954 as proceeds of a home loan from RAMS
Financial Group Pty Ltd, to pay out the mortgage over your parents’ residential
property in Templestowe which was then in default. That loan was fraudulently
obtained by your brother, Andre, and Ms Marannu. After applying most of the loan
to paying out the mortgage, a sum of $74,737 was left, of which $35,515 was paid to
The circumstances of the fraud on the part of your brother and sister in law were
matters of which you ought reasonably to have been aware. Thus, your dealing with
the $35,515 proceeds of that crime was, as you have conceded by your guilty plea,
negligent as to whether they were proceeds of crime.
The maximum penalty for obtaining financial advantage by deception is 10 years
imprisonment.4 The maximum penalty for negligently dealing with proceeds of
Fines6 and community based orders7, while
available for such offences, are not considered appropriate in the current matter.
Because each offence of obtaining financial advantage by deception involved a sum
in excess of $50,000, they are each a ‘continuing criminal enterprise offence’ under
Part 2B of the Sentencing Act 1991
(Vic). You have not previously been found guilty
of such offences. Having been found guilty by the jury on 14 November 2011 of two
offences of obtaining financial advantage by deception, your plea of guilty to a third
such offence on 23 November 2011 (count 3) brought you within the definition of a
‘continuing criminal enterprise offender’8. The maximum penalty for the third
offence is twice the maximum for the offence itself: thus, taking it to a maximum of
Section 81(1) Crimes Act 1958
Section 194(4) Crimes Act 1958
Section 103(3)(a) Sentencing Act 1991
Section 103(3)(b) Sentencing Act 1991.
Section 6H(1)(a) Sentencing Act 1991
20 years imprisonment9 for the particular charge to which you pleaded guilty.
Nature and gravity of the offences
Of the three counts of obtaining financial advantage by deception, two were
committed in quick succession in late July and early August 2007, and the third was
committed some nine months later in April 2008. The amounts involved which I
have already listed are very significant sums of money.
Those three offences involved, essentially, the same modus operandi. They each
involved the creation of false invoices prepared on genuine Mac Spot invoice
stationery and containing a carefully compiled list of goods designed to appear
convincing. They also involved the completion of finance application documents for
the relevant lender and a personal attendance upon the financier to negotiate the
In short, the crimes involved planned and coordinated implementation and were
The fourth count, that of negligently dealing with the proceeds of crime, also
involved several discrete receipts and dealings. The total sum of $35,515 was dealt
with by you in a number of transactions over a ten day period: on 17 November
2008, $3,000 was received, $2,000 of which was paid to Circuit Finance in part
settlement of the debt which arose because of count 3; on the same date you
provided a bank cheque to Leonard Legal from the proceeds, again in part
settlement of the Circuit Finance debt; on the same date $9,000 was received to your
credit card account; on the next day a further $300 was received to your bank
account; and, on 28 November 2008, $10,000 was paid from the proceeds to meet
payments which you had fallen behind in paying for your car.
All of these amounts were dealt with by you negligently as to whether they were
Moral culpability/degree of responsibility
Your role in relation to obtaining finance by deception from Westpac Bank (counts 1
and 2) was to create the false invoice which was used for the purpose. I proceed on
the basis that your role in respect of count 3, involving Circuit Finance, was of the
It follows that you did not complete the finance application nor attend upon the
finance company in relation to any of those charges. In one sense your role was
more removed and less brazen than those who did make the applications and
attended in person. Nevertheless, these crimes could not have been committed
without the false invoices having been generated. The invoices needed to be
convincing and thus the generation involved some effort and attention. They were,
in substance, the centrepiece of the deception and you created them dishonestly
knowing the purpose for which they were to be employed.
I accept that the deceptions were committed primarily for the benefit of the
businesses of your brother, Andre. I also accept that your brother Andre and Tony
Nguyen had the essential day to day control of the businesses for whom the monies
were borrowed and that you had little to do with that control. I also accept that you
only received a relatively modest direct financial benefit from the three counts of
obtaining financial advantage by deception.
Nevertheless, you did receive some direct financial benefit. Additionally you stood
to gain if your brother’s businesses, which were the prime beneficiaries of the crimes
the subject of the first three counts, prospered and began to make money. You
would gain because you held a half shareholding in ANDMA Holdings Pty Ltd
(which in turn owned a number of the businesses). You would also gain from
continued employment in the businesses and, although you had not been taking
income for your work in the businesses, you had the prospect of being reimbursed
once the companies were in better financial health.
It is clear that you are an intelligent person and that you clearly knew right from
wrong. It is not suggested that you were overborne by any person in committing
these crimes. There is some evidence of you having mental health issues in your
early 20s, to which I will return shortly, but through your counsel you have
expressly disavowed relying on those health issues as a possible explanation for
your participation in the offences. Nor do I see any grounds for thinking that they
Even accepting that you might have engaged in the offences the subject of counts 1
and 2 in July/August 2007 without giving enough thought to the character of your
behaviour, you had plenty of time to consider your participation in the offence the
subject of count 3 in April 2008 – yet you went ahead. By then the police had already
executed a warrant in November 2007 on ANDMA Legal at McKillop Street which, I
would have thought, might have signalled a clear warning to you.
You may well have been influenced in your decision to participate in the offences by
a desire to support your brother and his businesses which were pivotal to the
sustenance of the wider family’s finances. Your counsel summarised your essential
motivation in these terms: “It was family stuff, what could I do?” But the success of the
dishonest schemes required someone willing and compliant to create the invoices –
someone who could be trusted to keep the scheme concealed. You were that person.
In my view your degree of responsibility for these crimes is only marginally lower
than those who were in the front line making the finance applications.
The charge the subject of count 4 is of lesser gravity than the others, not involving
any element of dishonesty. Nevertheless it involved a lack of care as to the source of
monies which you received with knowledge of facts which ought to have put you on
notice that those monies might be proceeds of crime.
In that state of mind you were prepared to accept significant sums of money for your
own benefit. $15,215 of those funds were used by you to settle a debt due to Circuit
Finance, thus satisfying a debt due for one crime by the proceeds of another. To my
mind this demonstrates that, by November 2008, you were driven by the need to
patch up your financial holes by whatever means, fair or foul.
Impact on victims: loss or damage resulting
Of the sum of $65,000 received from Circuit Finance, some monies have been repaid
(proceeds from the deception perpetrated on RAMS) leaving a balance owing to
Circuit Finance of $26,248. It is presently unclear how much, if any, of the $294,318
received from the two Westpac loans has been recovered by the bank after the sale of
certain properties mortgaged to secure those and other loans. Westpac has claimed
compensation for the full amount suggesting that it has not recovered the money.
You have no assets yourself from which you could satisfy these sums and your
RAMS has elected not to set aside the mortgage over your parents’ home but to keep
it on foot. It is still being paid the monthly instalments due and it maintains a
mortgage of over the security property. I understand you are assisting in the
business of your sister in law, on an unpaid basis, which generates the money to pay
Whilst the overall picture is a little opaque, it is clear that the ultimate losses to
lenders as a result of your criminal activity runs to the tens of thousands of dollars if
not hundreds of thousands of dollars.
You were born in Australia on 20 September 1979. Both your parents were born in
Italy. You have one older brother, Andre, your co-accused, who is two years older
Your father worked as a sales representative for a textile company and your mother
was a stay at home carer. You grew up in a relatively comfortable home in Lower
Templestowe and were educated at a Roman Catholic primary school and at
Marcellin College in Bulleen. You completed tertiary studies at Monash University,
graduating in Mechanical Engineering in 2004. You originally embarked upon a
double degree and later converted that to a single degree. You studied at Monash
At school you commenced involvement with the Army Reserves, following in the
footsteps of your brother Andre, as well as participating as a cadet with St Johns
Ambulance. You gained part time employment when 15 years of age, as a school
student, with Coles Supermarket in Bulleen where you continued to work
throughout your schooling and university years.
You remained living at home until you were 28 years of age after which you lived in
a series of apartments some of which you shared with your brother Andre. You
currently live in an apartment above the premises where the Mac Spot retail business
You apparently have had two romantic relationships of some duration: the first
lasting 9 years from the age of 19 and the second of a 12 month duration in your late
20s. You applied to join the Air Force and, although you were finally accepted, you
have not been able to commence that employment due to the charges you have
The general picture presented by this history is that of a solid family, educational
At the age of 22 you were diagnosed with a mental illness, having suffered episodes
of psychosis. Recently you told a psychologist (Dr Aaron Cunningham) that in 2002
you were cycling between manic and depressive episodes. You were prescribed
Zyprexa, Olanzapine and later Aripiprazole. You saw a psychiatrist, Dr Zenia
Prodromou on approximately 20 occasions from 2003 to January 2005.
Dr Prodromou reported that at the last consultation (27 January 2005) you were well
with no hallucinations or paranoia. You did not continue treatment with the
You have been managing yourself with Valium but
otherwise using relaxation techniques of meditation and listening to music. It also
seems you take Diazepam to control heart palpitations and anxiety.
Dr Cunningham, the psychologist, expressed the view in his report of 7 December
2011,10 that you have a current diagnosis of Schizoaffective Disorder Bipolar Type
which he describes as a serious psychological illness that burdens your mental state
through episodes of psychosis, mania and major depression. In Dr Cunningham’s
opinion your disorder would require both psychiatric and psychological treatment.
He further expressed the view that if left untreated a term of imprisonment will
weigh more heavily on you compared to an individual without the disorder and that
there is a serious risk that imprisonment will have a significant adverse effect upon
your mental health. This, he said, is because a person with such a disorder is more
prone to self-harm during times of stress and more vulnerable to negative influence
In substance your life is currently on hold until you have completed the sentence
which you will receive as a result of your participation in these criminal offences. In
the future you intend to move interstate and pick up a new life using your
qualification as a mechanical engineer.
You have no prior convictions. You contested counts 1 and 2 and, only after being
found guilty of them, you pleaded guilty to counts 3 and 4. In those circumstances,
whilst some discount should be given to reflect your plea on counts 3 and 4 in
recognition of some saving of further expense to the community by the avoidance of
another trial, given its late stage and the circumstances of it being given, the plea
does not signify any significant degree of remorse or acceptance of responsibility for
In order to have regard to current sentencing practices, amongst other things I have
consulted the Sentencing Advisory Council publication on “Sentencing Trends in the
Higher Courts of Victoria 2005-6 to 2009-10” for the offence of obtaining financial
Sentencing Snapshot, No 107, March 2011, Sentencing Advisory Council of Victoria.
Crimes such as those in counts 1, 2 and 3 are, by their nature, difficult to detect as
demonstrated by this case. You endeavoured to conceal the offences by the creation
of convincing yet false commercial documents. And, as the conduct of the lenders in
this case also demonstrated, commercial parties operate on the basis that business
documents of apparently genuine provenance can be trusted and therefore form a
basis of transactions involving hundreds of thousands of dollars without elaborate
The cost caused to commerce, and to the community generally, by those like you
who undermine that trust so that additional checks and balances must be put in
place, or losses simply suffered, is significant.
consideration of general deterrence should loom large.12
I also consider that the sentence I impose should manifest the court’s denunciation of
the type of conduct in which you have engaged.
You are presently 32 years of age, without prior convictions and, having had the
benefit of good education, ultimately with quite good job prospects. A number of
people who have worked with you in the past, including a former delicatessen
manager at the Coles Supermarket who worked with you for nine years, have
remarked in testimonials that you are a quiet and gentle person by nature, hard
working, and willing to help others. It is said that your behaviour in the commission
of these offences is out of character.
Although now in your 30’s, I nevertheless consider that your background and
character suggests you have reasonable prospects of rehabilitation. Those prospects
Additionally, as I have already mentioned there is some evidence which indicates
that, because of your mental health, imprisonment will, in your case, be both
R v Kostikidis
(Unreported, Supreme Court of Victoria, Court of Appeal, 12 September 1996).
an additional burden upon you compared with other prisoners, and
give rise to a significant risk that it may exacerbate your mental illness.
In my view, while I take into account the prospect that psychiatric or psychological
treatment and support is likely to be available to you to ameliorate the effects of
imprisonment upon you, nevertheless those effects justify some moderation of the
Given the amounts involved, the number of offences committed and the fact that
your offending was committed over a period exceeding 15 months, I am of the view
that considerations of general and specific deterrence, and denunciation, warrant a
sentence of imprisonment. Indeed it was not contended on your behalf otherwise.
The sentence will also reflect the fact that by the commission of the offence the
subject of count 3 you became a continuing criminal enterprise offender.
It was argued by your counsel that the sentence ultimately fixed by the Court of
Appeal for your sister in law, Meganita Marannu, in relation to the criminal
deception forming the background to count 4, should constitute a broad guide to the
disposition which you should receive. For the particular reasons explained by the
Court of Appeal Ms Marannu received a total effective sentence of 10 months wholly
suspended.14 I do not consider the sentence given to Ms Marannu provides a
particularly helpful guide in sentencing you. Her circumstances were different in
too many respects; on the one hand, the offence was quite different (more serious)
but, on the other, she had very significant mitigating circumstances which do not
I have also been urged by your counsel to suspend at least some part of the sentence
of imprisonment I am about to impose. In my view any purpose or justification
lying behind the partial suspension of any portion of the term of imprisonment will
be adequately addressed by the duration of the total effective sentence and non-
R v Verdins
(2007) 16 VR 269, 276 , 5th and 6th principles.
Marannu v The Queen
 VSCA 105.
Although the amount of money involved in count 2 ($209,000) is of a somewhat
different order of magnitude to the amounts involved in counts 1 and 3, given the
relationship in time and circumstance between the events of counts 1 and 2, the
separate circumstance involving count 3, and the nature of your role in each of the
three counts of obtaining financial advantage by deception, I consider that each
Marc Di Cioccio [please stand], on each of the counts of the indictments of which you
stand convicted I sentence you as follows:
of indictment C1007368 (obtaining financial advantage by
deception, $85,318) to 15 months’ imprisonment.
On count 2 of indictment C1007368 (obtaining financial advantage by
deception, $209,000) to 15 months’ imprisonment.
On count 1 of indictment C1007368.2 (obtaining financial advantage by
deception, $65,000) to 15 months’ imprisonment.
On count 2 of indictment C1007368.2 (negligently dealing with proceeds of
crime, $35,515.49) to 7 months’ imprisonment.
I order that the following periods of imprisonment be served cumulatively upon
each other and on the sentence imposed in count 1 of indictment C1007368: on count
2 of indictment C1007368, six months; on count 1 of indictment C1007368.2, six
months and on count 2 of indictment C1007368.2, three months. That makes a total
effective sentence of 30 months. I fix a non-parole period of 14 months.
In accordance with s 6AAA of the Sentencing Act 1991
(Vic) I state that but for your
plea of guilty in respect of the two counts of indictment C1007368.2 I would have
imposed a total effective sentence for those two counts of 24 months with a non-
parole period of 15 months and I will cause those details to be entered on the court
In accordance with s 6J(1) of the Act I require it to be entered in the records of the
Court that you have been sentenced for a continuing criminal enterprise offence in
respect of the offence the subject of count 1 of indictment C1007368.2.
In accordance with s 18(4) of the Act I declare that you have served 44 days by way
of pre-sentence detention, up to and including today, which are to be reckoned as
already served under the sentence I have just imposed. I require that declaration to
be noted in the records of the court.
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